The attorney for a Mexican national who reported being shot last month by a Border Patrol agent said Wednesday that he was filing a $5-million claim for damages, contending that U.S. agents acted irresponsibly when they fired their weapons across the border into Mexico.
The attorney, Marco Lopez, and the U.S. attorney's office also said Wednesday that they plan to meet Monday in U.S. District Court in San Diego to arrange to take legal depositions from two illegal aliens who are considered key witnesses to the Dec. 21 shooting near the Otay Mesa border crossing.
U.S. Justice Department officials said they are reluctant to release the two illegal aliens from a San Ysidro detention center and deport them to Mexico until their sworn legal statements about the shooting during an alleged rock-throwing incident are taken.
"Otherwise, we don't know where they'll be going," said Charles Hamilton, a special assistant U.S. attorney. "In Mexico, they would be beyond the U.S. court's power. We can't subpoena them down there. And if they return to this country illegally, Lord knows where they will be."
Shot Once in Back
Ignacio Mendez Pulido was shot once in the back, the bullet penetrating his spinal column. Officials at Mercy Hospital said Mendez is paralyzed from the waist down. They said his condition was stable, and that the hospital plans to transfer him soon into a rehabilitation program.
Javier Escobar, the local consul general for Mexico, said his government supported Lopez in filing the $5-million claim with the regional office of the U.S. Immigration and Naturalization Service.
"He is trying to establish responsibility," Escobar said. "And if this Mexican national's human rights were violated and he is paralyzed for life, then he should receive appropriate compensation. Definitely so."
"This guy was not armed," Lopez said. "He was not involved in rock throwing. He was 10 to 15 yards away from the border patrolmen when he was shot in the back. It's a bad shooting."
Lopez earlier represented Humberto Carrillo Estrada, a Tijuana barrio resident who was shot in 1985 after he allegedly threw rocks at Border Patrol agents who had arrested his older brother. Lopez filed a $3 million civil lawsuit in that case, which resulted in a federal court award in August of $574,000.
Asked to compare the cases, Lopez said: "Both shootings were unjustified."
William Odencrantz, western regional counsel for the INS, said that under federal rules, the INS will have six months to review the claim and either approve or deny the full payment, or grant partial payment.
"After six months he has the right to sue," Odencrantz said. "If he's unhappy, there can be adjudication and it can go to court."
Border Patrol officials have said the Mendez shooting occurred about 7 p.m. Dec. 21 when two agents were allegedly pelted by rocks. They had earlier placed the two illegal aliens inside their agency vehicle and had parked along the border. The aliens were identified Wednesday as Juan Carlos Torres Silva and Hugo Rivera Huerta.
A crowd of people formed on the Mexican side and then rocks were thrown at the agents and the vehicle. One of the aliens inside the vehicle suffered facial cuts and a broken nose. Officials said the two agents fired a total of three rounds.
However, Mendez and his wife, Juana Mendez Pulido, have said he saw the rocks being thrown at the agents, but did not participate. Instead, they said, he fled back into Mexico and was wounded in the back in the ensuing gunfire.
Ralph Paige, an investigator with the Justice Department's Office of Professional Responsibility, said Wednesday that the agents believed the rocks were gunfire.
"They were both adamant that they felt their safety as well as that of their two passengers was in jeopardy," he said.
Declining to identify the two agents, Paige also said he was "not prepared to state with certainty" that Mendez was indeed shot by either of them.
Paige said that because it was dark and the aliens were inside the vehicle, they were unable to see whether Mendez was indeed shot by the agents.
"They hit the deck when the first rock came in and tried to protect themselves," he said.
He said Lopez has not allowed him to interview Mendez. And he noted that the bullet fragment is still lodged in Mendez's spine.
Laura Avallone, a spokeswoman at Mercy Hospital, said doctors believe it would be medically risky to attempt to remove the fragment. Lopez said the caliber of the bullet could not be determined from X-rays.
Paige said his office will complete an evidentiary report and then forward it to the U.S. attorney and the San Diego County district attorney. Spokesmen for those two offices said they will evaluate the evidence and determine whether any charges should be filed.
"I will look at it with a very narrow focus of whether the conduct of the agents in their use of deadly force was legally justified," said Allan Preckel, chief of special operations with the district attorney's office. "That will be the only question before me."
Hamilton, of the U.S. attorney's office, said the two illegal aliens told the Office of Professional Responsibility that "they were terrorized that they were going to be killed."
"They believed the rocks were gunfire," Hamilton said. "The individual who was wounded by a rock thought he was shot."
But he added that the aliens could not identify Mendez as being in the area at the time of the incident. "I don't believe they'd know Mr. Mendez by name or face," he said.
Lopez criticized U.S. investigators, saying he has been unable to learn the identity of the two agents and has not been allowed to interview the two aliens. He said he just learned their names Wednesday.
However, he remained confident that he could pin responsibility for the shooting on the Border Patrol.
"Look," he said. "We have border patrolmen shooting guns. They shot three times."